Universal Candy Co. v. A. G. Morse Co.

SMITH, Acting Associate Justice. This is an appeal from a decision of the Commissioner of Patents, affirming a decision of the Examiner of Interferences, which granted registration of the trade-mark “Universal” to the A. G. Morse Company for use on candy, and denied registration thereof to the Universal Candy Company. The application for registration by the A. G. Morse Company was filed op the I6th of August, 1921, and is known as serial No. 151,837. Erom the record in the case it appears that the A. G. Morse Company adopted and began to use the mark in the year 1911, and continued to use it until the year 1917 or 1918, when its further use was suspended. The suspension was caused by war conditions, which greatly increased the cost of the expensive boxes to which the mark was applied, and which made it not only difficult to obtain, but inadvisable to use the sugar necessary for the manufacture of the grade of. candy to which the mark was attached. At the time the use of the mark was discontinued, the A. G. Morse Company had a large stock of “Universal” seals, which was kept on hand during the entire period of discontinuance. The use of the seals was resumed about the first of September, 1921, and has been continued since that time. The Universal Candy Company, by itself' and predecessors in interest, began the use of the mark on November 8, 1915, and filed its application, serial No. 141,888, for the registration thereof on the 5th of January, 1921. The adoption of the mark and its use by the A. G. Morse Company was admittedly prior to its adoption and use by the Universal Candy Company and its predecessors in interest. The discontinuance of the use of the mark by the A. G. Morse Company was caused by circumstances over which the company had no control, and inasmuch as the stock of Universal seals was kept on hand and their use resumed when conditions became more favorable, such discontinuance must be regarded as temporary, and not as an abandonment of the mark. The decision appealed from must therefore be affirmed.